20.09. Reading: Attorney Grievance Commission of Maryland v. Gansler, 835 A.2d 548 (Md. 2003)

Reading Guide

Preparing for the Reading:
Read Rule 3.6 (Trial Publicity) and Rule 3.8(f) before reading this case. As you read the case, consider the various statements by the Prosecutor and whether/why they violate the Rules.

Issues:
– How does the court interpret the phrase “public record” in the Rules?
– What sanction (if any) was imposed on the lawyer?

Attorney Grievance Commission of Maryland v. Gansler

835 A.2d 548 (Md. 2003)

Argued before BELL, C.J., and ELDRIDGE, WILNER, CATHELL, HARRELL, BATTAGLIA, and ROBERT L. KARWACKI (Retired, specially assigned), JJ.

Opinion

BATTAGLIA, Judge.

Respondent Douglas F. Gansler was admitted to the Bar of this Court on December 18, 1989. On November 7, 2002, the Attorney Grievance Commission of Maryland, by Bar Counsel, acting pursuant to Maryland Rule 16–751(a), filed a petition for disciplinary action, alleging that Gansler violated the following Maryland Rules of Professional Conduct (hereinafter “MRPC”): MRPC 3.1 (Meritorious Claims and Contentions), MRPC 3.6 (Trial Publicity), MRPC 3.8 (Special Responsibilities of a Prosecutor), MRPC 8.2(a) (Judicial and Legal Officials), and MRPC 8.4(a) & (d) (Misconduct).

The charges arose from numerous extrajudicial statements made by Gansler, who has served as the State’s Attorney for Montgomery County since January of 1999.

….

I. Facts

[The established] facts demonstrate that, between 2000 and 2001, Gansler made several extrajudicial statements in connection with his office’s prosecution of various well-publicized crimes. A discussion of the circumstances of each of the extrajudicial statements follows.

A. The Cook Case

In late January of 2001, Sue Wen Stottsmeister was found beaten and unconscious. She had been accosted while jogging along a recreational path located in the Aspen Hill area of Montgomery County. Ms. Stottsmeister ultimately died from the injuries she suffered during that attack.

Nearly six-months later, on June 4, 2001, Albert W. Cook, Jr. allegedly attacked a woman near his home. Witnesses of that attack chased and kept visual contact with Cook until police arrived and arrested him for that incident. While the police were investigating the June 4, 2001 attack, they began to focus their attention on Cook as a suspect in the murder of Stottsmeister. In the afternoon of June 5, 2001, police officials convened the media for a press conference. Before the press conference began, a Washington D.C. television station broadcasted a report that large sneaker footprints had been found at the scene of the murder and that Cook had large feet that might fit sneakers of that size. The press conference then commenced, and the police announced that Cook would be charged with the Stottsmeister murder.

Gansler attended that press conference and made several statements to the media regarding the anticipated prosecution of Cook. He described Cook’s confession and the circumstances surrounding his custodial statements to police:

The police were able to obtain a confession completely consistent with [Cook’s] constitutional rights, he confessed within just a few hours with incredible details that only the murderer would have known. He was then provided the opportunity to rest and … he slept, and where he had said was one of the best nights of sleep he had gotten in a long time.

This morning at dawn, he was taken up to the crime scene, videotaped by police, and went over in detail by detail every step of what he did to Ms. Stottsmeister this past January.

Gansler further stated that investigators had “boot print matches and that type of thing, or actually in this case the sneaker matches, but we’re very confident, obviously more than confident that we have apprehended the right person….”

After the press conference, police charged Cook with the murder of Stottsmeister. The statement of charges, which was filed in the District Court of Maryland, Montgomery County, stated: “Cook provided a full and detailed account of the assault and murder of Stottsmeister…. Cook provided details about the murder that would only be known by the perpetrator of the crime.”

B. The Lucas Case

While asleep during the middle of the night, Monsignor Thomas Martin Wells, a revered member of the Montgomery County community, was beaten and killed in the rectory at his parish. On June 17, 2000, the Montgomery County police arrested Robert P. Lucas and charged him with the murder of Monsignor Wells. The statement of charges stated that the police had observed Lucas “wearing shoes having a shoe print consistent with the ones found on the crime scene” and that after Lucas was arrested, he “admitted breaking into the church rectory and responsibility for Well’s murder.”

The police held a press conference on June 18, 2000 to announce the arrest of Lucas and the charges against him. Gansler spoke at the press conference:

The Montgomery County Police … were able to determine definitively that indeed it was Mr. Lucas who had committed the crime. They were able to do so by following him. They conducted surveillance for over 24 hours. And then when they actually found him, he was wearing a very unique shoe, a very unique boot, and the print of that boot matched the print that was found at the scene of the crime, and then further questioning revealed, in fact, he was the person that had done it.

He offered several remarks about the evidence against Lucas, which he described as “a confession from the perpetrator as well as scientific and forensic evidence to corroborate that confession….” Gansler then expressed his opinion that “we have found the person who committed the crime at this point” and that the case against Lucas “will be a strong case.”

Additionally, Gansler commented at the press conference that “it was a violent murder” and that Lucas “has a criminal record which includes residential burglaries and that will be obviously something that will come out later on as well.” In fact, Lucas’s criminal record came out again later, when Deputy State’s Attorney Katherine Winfree discussed it at Lucas’s bond hearing on the Monday after the press conference.

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D. The Bomb Threat Case

On February 8, 2000, the Montgomery County Journal published an article reporting the dismissal of charges against two Montgomery County teenagers who had been accused of calling bomb threats to Wheaton High School. At the juveniles’ trial, the State presented evidence of two telephone calls that purportedly were the bomb threats. One of the calls, the article stated, could not be linked to either juvenile, and the other had been made three days prior to the alleged bomb threat. The article quoted the presiding judge, who in dismissing the charges, said, “I have no idea who did this” and “I have no evidence.” The Journal account relayed Gansler’s comments that “his office will continue to prosecute youths suspected of making bomb threats, even if the case is not strong enough to warrant a conviction.” Gansler was quoted as saying, “We try hard cases…. Juveniles who phone in bomb threats will be prosecuted. It’s more important to prosecute someone and have them acquitted [sic] than let them commit crimes with impunity.”

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IV. Discussion

A. MRPC 3.6

This case serves as this Court’s first opportunity to consider the application of MRPC 3.6, the rule of professional responsibility governing trial publicity. More significant than the case’s novelty, however, are the balance and interplay of the numerous interests, rights, and responsibilities involved. To provide the proper context for understanding the important issues presented, we begin with a historical discussion of the regulation of trial publicity. We then proceed to dissect Maryland’s present rule and apply it to the extrajudicial statements in controversy.

1.  Origins of the MRPC 3.6

Criminal justice must be carried out in the courtroom. As Justice Holmes declared in Patterson v. Colorado, 205 U.S. 454, 462, 27 S.Ct. 556, 558, 51 L.Ed. 879, 881 (1907), “[t]he theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.” The constitutional underpinnings for this concept reside in the Sixth Amendment’s right to a fair trial, made applicable to our State through the Fourteenth Amendment.

The text of the Sixth Amendment makes clear that a fair trial consists of numerous components, including, but certainly not limited to, the rights of an accused to a public trial and impartial jury. These components alone, of course, do not necessarily ensure a fair trial, as Chief Justice Warren explained:

It has been held … that the fundamental conception of a fair trial includes many of the specific provisions of the Sixth Amendment…. But it also has been agreed that neither the Sixth nor the Fourteenth Amendment is to be read formalistically, for the clear intent of the amendments is that these specific rights be enjoyed at a constitutional trial. In the words of Justice Holmes, even though “every form [be] preserved,” the forms may amount to no “more than an empty shell” when considered in the context or setting in which they were actually applied.

Id. at 560, 85 S.Ct. at 1641, 14 L.Ed.2d at 560 (Warren C.J., concurring).

Thus, even where a court has observed all of the Sixth Amendment formalities, it is possible for a defendant to be deprived of a fair trial if circumstances occurring outside the courtroom taint the proceedings. See Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963) (holding that a defendant’s fundamental due process rights had been violated because a local television station had broadcasted his confession, and he was denied a change of venue).

One outside circumstance that may affect a defendant’s right to a fair trial and, specifically, his right to an impartial jury, occurs when an attorney makes a publicized, out-of-court statement about the defendant’s case. This is particularly true because attorneys occupy a special role as participants in the criminal justice system, and, as a result, the public may view their speech as authoritative and reliable. Attorneys involved in a particular case have greater access to information through discovery, the ability to converse privately with knowledgeable witnesses, and an enhanced understanding of the circumstances and issues. Their unique role and extensive access to information lends a degree of credibility to their speech that an ordinary citizen’s speech may not usually possess. Comments by prosecuting attorneys, in particular, have the inherent authority of the government and are more likely to influence the public. When such seemingly credible information reaches the ears or eyes of the public, the jury pool may become contaminated, greatly diminishing the court’s ability to assemble an impartial jury. The defendant’s right to a fair trial, thus, may be compromised.

Limiting extrajudicial attorney speech to preserve a fair trial, however, can be accomplished only in a way that is consistent with the fundamental right to free expression under the First Amendment. In general, the First Amendment applies equally to an ordinary citizen and an attorney, as long as the attorney “plays no lawyerly role in the matter under comment.” On the other hand, when the attorney has some professional relationship to a matter, the attorney’s freedom to speak about it is not as broad. For instance, inside the courtroom, the rules of evidence and principles of relevance place rigid restrictions upon what an attorney may say, and when and how he or she may speak. Even outside the courtroom, the speech of a lawyer may be curtailed to an extent greater than an ordinary citizen’s….

In 1908, the American Bar Association first attempted to control the ill effects of attorney-generated trial publicity through the development of professional standards entitled “Canons of Professional Ethics” (hereinafter the “ABA Canons”). Many states adopted the ABA Canons, including Canon 20, which “[g]enerally … condemned” newspaper publications “by a lawyer” regarding a pending case because such publications “may interfere with a fair trial in the Courts and otherwise prejudice the due administration of justice.” ….

Despite the widespread adoption of the ABA Canons, trial publicity continued to affect defendants’ Sixth Amendment rights and, consequently, gained the attention of the Supreme Court during the 1950s and 1960s. The Court dealt with the detriments of excessive media involvement in cases by reversing a number of criminal convictions on the ground that excessive trial publicity deprived the defendants of due process. Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965) (holding that a defendant had been denied due process because a pre-trial hearing had been televised live and then rebroadcast, and because the court proceedings had been disrupted by the presence of the media); (cases omitted).

The leading case during this era, which identified the need for trial publicity reform and shaped the American Bar Association’s (hereinafter “ABA”) remedial measures, was Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966). There, the Court, on due process grounds, reversed the murder conviction of Sam Sheppard, whose high-profile trial had been preceded and pervaded by a media frenzy. Id. at 363, 86 S.Ct. at 1522–23, 16 L.Ed.2d at 621. Newspapers had documented Sheppard’s alleged refusal to cooperate with investigating officials and had published articles discussing incriminating evidence that was never admitted at trial. Id. at 338–41, 86 S.Ct. at 1509–11, 16 L.Ed.2d at 606–08. During trial, members of the media frequently moved in and out of the courtroom, causing so much noise and confusion that it became difficult to hear lawyers and witnesses. Id. at 344, 86 S.Ct. at 1513, 16 L.Ed.2d at 610. Furthermore, reporters had crowded the defense table at trial, making it very difficult for Sheppard to have private discussions with his counsel. Id. Despite the chaotic conditions, the trial judge refused to allow a change of venue and failed to take steps to control the adverse effects of the publicity. Id. at 354 n. 9, 358–59, 86 S.Ct. at 1518 n. 9, 1520, 16 L.Ed.2d at 615 n. 9, 618.

The Supreme Court admonished the trial court in Sheppard for its failure to control the extrajudicial publicity:

The fact that many of the prejudicial news items can be traced to the prosecution, as well as the defense, aggravates the judge’s failure to take any action. Effective control of these sources—concededly within the court’s power—might well have prevented the divulgence of inaccurate information, rumors, and accusations that made up much of the inflammatory publicity. …

Id. at 361, 86 S.Ct. at 1521, 16 L.Ed.2d at 619.

The Court suggested how the trial judge could have minimized the prejudicial publicity, including proscribing extrajudicial statements by lawyers and other trial participants, requesting local officials to implement regulations with respect to the dissemination of trial information, and warning news media about the impropriety of publicizing material not introduced at the proceeding. Id. at 361–62, 86 S.Ct. at 1521–22, 16 L.Ed.2d at 619–20. Emphasizing the prejudicial effect of news media on fair trials, the Court iterated:

Due process requires that the accused receive a trial by an impartial jury free from outside influences. Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused…. [W]here there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should continue until the threat abates, or transfer it to another county not so permeated with publicity.

Id. at 362–63, 86 S.Ct. at 1522, 16 L.Ed.2d at 620.

Id. at 362–63, 86 S.Ct. at 1522, 16 L.Ed.2d at 620. Moreover, the Court recognized that repeatedly reversing convictions would not suffice as a long-term remedy for the harm of trial publicity. The Court recommended an alternative solution:

But we must remember that reversals are but palliatives; the cure lies in those remedial measures that will prevent the prejudice at its inception. The courts must take such steps by rule and regulation that will protect their processes from prejudicial outside interferences. Neither prosecutors, counsel for defense, the accused, witnesses, court staff nor enforcement officers coming under the jurisdiction of the court should be permitted to frustrate its function. Collaboration between counsel and the press as to information affecting the fairness of a criminal trial is not only subject to regulation, but it is highly censurable and worthy of disciplinary measures.

Id. at 363, 86 S.Ct. at 1522, 16 L.Ed.2d at 620.

… Rule 3.6 of the Model Rules of Professional Conduct (hereinafter the “ABA Model Rules”) attempted to regulate trial publicity in a way that constitutionally balanced the lawyers’ right to free expression and an accused’s right to a fair trial. MRPC 3.6, which first appeared in the Maryland Rules in 1986 and presently governs trial publicity in Maryland, is identical to this initial version of ABA Model Rule 3.6.

2.  The Structure and Operation of MRPC 3.6

MRPC 3.6 has three subsections, which all operate together to give the rule its full meaning. Subsection (a) announces a general prohibition against lawyers making extrajudicial statements that “the lawyer knows or reasonably should know … will have a substantial likelihood of materially prejudicing an adjudicative proceeding.” This prohibition applies, however, only to those statements that a reasonable person “would expect to be disseminated by means of public communication.”

Subsection (b) provides examples of the types of extrajudicial statements that would have “a substantial likelihood of materially prejudicing an adjudicative proceeding.” Under subsection (b), statements are prohibited that “ordinarily [are] likely” to include references to criminal matters that relate to, among other things, the criminal record of a party, the possibility of a plea of guilty, the existence or contents of any confession, admission, or statement by a defendant, or any opinion as to the guilt or innocence of a defendant.

Subsection (c) states, however, that circumstances exist where an attorney, without risking discipline, may make extrajudicial statements that fall under subsections (a) and (b). The provisions under subsection (c) are known as “safe harbors.” … For example, an attorney may disclose, through extrajudicial statements and “without elaboration,” “the scheduling or result of any step in litigation,” even if that information, in some way, would have a “substantial likelihood of materially prejudicing an adjudicative proceeding.” MRPC 3.6(c) (4). Another such “safe harbor” permits attorneys to comment outside the courtroom and without elaboration on “information contained in a public record.” MRPC 3.6(c) (2).

3.  Gansler’s Extrajudicial Statements Applied to MRPC 3.6

In the case before us, Bar Counsel argues that Gansler violated MRPC 3.6 by making extrajudicial statements related to the Cook [and] Lucas cases. Gansler asserts, however, that his statements in these cases fall under the “public record” exception under the safe harbor provisions of MRPC 3.6(c). In addition, Gansler claims that the safe harbor provisions do not provide sufficient guidance as to what information is contained in the “public record,” so he was incapable of determining which statements actually would constitute violations.

The issues in this case are similar to those discussed by the Supreme Court in Gentile. In a fractured opinion, the Court held that Nevada Supreme Court Rule 177, a rule substantively identical to MRPC 3.6, had been unconstitutionally applied to discipline a defense lawyer for making extrajudicial statements that professed his client’s innocence in a criminal case. Id. at 1033, 111 S.Ct. at 2723, 115 L.Ed.2d at 897. Chief Justice Rehnquist authored the portion of the majority opinion analyzing the “substantial likelihood of material prejudice” standard of Rule 177, and Justice Kennedy represented the majority of the Court in striking down Nevada’s application of Rule 177 as unconstitutionally vague.

Nevada’s rule, like Maryland’s, prohibited an attorney from making extrajudicial statements that have a “substantial likelihood of materially prejudicing an adjudicative proceeding.” Gentile, the Nevada attorney challenging the rule, argued that this standard infringed upon an attorney’s right to free speech as guaranteed by the First Amendment to the United States Constitution. The State Bar of Nevada, arguing in favor of the standard, emphasized the State’s interest in maintaining fair trials that are decided in the courtroom and not through the use of “the meeting-hall, the radio, and the newspaper.” Id. at 1070, 111 S.Ct. at 2742, 115 L.Ed.2d at 920 (quoting Bridges v. California, 314 U.S. 252, 271, 62 S.Ct. 190, 197, 86 L.Ed. 192, 208 (1941)).

In analyzing the parties’ arguments, the Court acknowledged that the First Amendment permitted States to regulate attorney speech more stringently than the speech of an ordinary citizen. Id. at 1071, 111 S.Ct. at 2743, 115 L.Ed.2d at 921. The Chief Justice explained the State’s particular interest in restricting speech of a lawyer involved in a pending case:

Lawyers representing clients in pending cases are key participants in the criminal justice system, and the State may demand some adherence to the precepts of that system in regulating their speech as well as their conduct. As noted by Justice Brennan in his concurring opinion in Nebraska Press, which was joined by Justices Stewart and Marshall, “as officers of the court, court personnel and attorneys have a fiduciary responsibility not to engage in public debate that will redound to the detriment of the accused or that will obstruct the fair administration of justice.” Because lawyers have special access to information through discovery and client communications, their extrajudicial statements pose a threat to the fairness of a pending proceeding since lawyers’ statements are likely to be received as especially authoritative.

Id. at 1074, 111 S.Ct. at 2744–45, 115 L.Ed.2d at 923 (citation omitted).

The Court concluded that the “substantial likelihood of material prejudice standard constitutes a constitutionally permissible balance between the First Amendment rights of attorneys in pending cases and the State’s interest in fair trials.” Id. at 1075, 111 S.Ct. at 2745, 115 L.Ed.2d at 923 (internal quotations omitted).

The Court also subjected the “substantial likelihood” standard under Rule 177 to traditional First Amendment scrutiny, requiring that content-based speech regulation be necessary to achieve a legitimate state interest. Id. The Court stated:

The “substantial likelihood” test embodied in Rule 177 is constitutional under this analysis, for it is designed to protect the integrity and fairness of a State’s judicial system, and it imposes only narrow and necessary limitations on lawyers’ speech. The limitations are aimed at two principal evils: (1) comments that are likely to influence the actual outcome of the trial, and (2) comments that are likely to prejudice the jury venire, even if an untainted panel can ultimately be found. Few, if any, interests under the Constitution are more fundamental than the right to a fair trial by “impartial” jurors, and an outcome affected by extrajudicial statements would violate that fundamental right. Even if a fair trial can ultimately be ensured through voir dire, change of venue, or some other device, these measures entail serious costs to the system. Extensive voir dire may not be able to filter out all of the effects of pretrial publicity, and with increasingly widespread coverage of criminal trials, a change of venue may not suffice to undo the effects of statements such as those made by [Gentile]. The State has a substantial interest in preventing officers of the court, such as lawyers, form imposing such costs on the judicial system and on the litigants.

Id. at 1075, 111 S.Ct. at 2745, 115 L.Ed.2d at 923–24 (citations omitted).

The Court concluded that the “substantial likelihood” standard was narrowly tailored to protect these State interests. Id. at 1076, 111 S.Ct. at 2745, 115 L.Ed.2d at 924. This was so because the restraint on attorney speech was limited—”it applies only to speech that is substantially likely to have a materially prejudicial effect; it is neutral as to points of view, applying equally to all attorneys participating in a pending case; and it merely postpones the attorneys’ comments until after trial.” Id.

The case before us involves the application of a different safe harbor, MRPC 3.6(c) (2), which refers to “information contained in a public record.” This provision suffers from constitutional infirmities similar to those of Nevada’s Rule 177(3) (a). The text of MRPC 3.6(c) (2) provides that an attorney may make extrajudicial statements “without elaboration” concerning “information contained in a public record.” These protections lack a clarifying interpretation by this Court, and the term “elaboration,” a classic term of degree, has no settled usage or tradition of interpretation in law.

The phrase “information contained in a public record” also does not provide sufficient guidance for determining which statements were protected under MRPC 3.6(c) (2). As evidenced by the widely disparate meanings for “public record” that the parties’ experts in this case have advanced, the term, standing alone, can be subject to multiple interpretations even by lawyers well educated on this specific principle of professional responsibility. Gansler and Professor Lerman define “information in a public record” broadly as “anything that has been filed in court … and anything that has been otherwise made public.” Bar Counsel and Professor Dash offer a narrower interpretation, suggesting that “the public record exception applies to that formal information in the public domain that exists prior to, or separate from, the investigation and prosecution of the subject criminal matter.” (emphasis added). Bar Counsel, however, has provided no authority to support its interpretation and, in fact, concedes that the term “does not appear to have been the subject of judicial scrutiny and little guidance is afforded….”

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Another source, Black’s Law Dictionary, defines “public record” as “[a] record that a governmental unit is required by law to keep, such as land deeds kept at a county courthouse.” BLACK’S LAW DICTIONARY 1279 (7th ed.1999). These characterizations of “public record” contemplate only information that has been created or distributed by a government entity.

Not all sources, however, consider “public record” to be a reference to materials produced by any government entity. Although Canon 20 of the 1908 ABA Canons of Ethics did not use the phrase “information contained in a public record,” its terms do furnish some instruction as to the meaning of the phrase. Canon 20 prohibited “ex parte reference” to the facts of a case “beyond quotation from the records and papers on file in the court.” (emphasis added).… Thus, according to some sources, “public records” are limited to the exact information contained in documents on file with the court.

Because there is no settled definition of “information contained in a public record” we agree with Gansler that MRPC 3.6(c) (2) does not provide adequate guidance for determining which extrajudicial statements would qualify under the safe harbor. For this reason, we construe the phrase in its broadest form as applied to Gansler in this case and to any other extrajudicial statements made prior to the filing of this Opinion. In this case, we consider “information in a public record” to include anything in the public domain, including public court documents, media reports, and comments made by police officers.

Under this broad interpretation, it is clear that a number of Gansler’s extrajudicial statements do not warrant discipline, as the hearing judge determined. Gansler did not violate MRPC 3.6 by commenting on the sneaker print matches in Cook’s case because, shortly before Gansler’s extrajudicial comments, a television reporter had broadcast an account of that evidence nearly mirroring Gansler’s version. Additionally, in the Lucas case, Gansler made statements to the media about a shoe print at the crime scene that matched shoes Lucas had been observed wearing. This information was already public as recorded in the statement of charges filed by the police the day before. Also contained in the statement of charges was an account of Lucas’s admission to police that he broke into the church rectory and murdered Monsignor Wells. Therefore, the next day, when Gansler relayed information about the admission to the media, he revealed “information contained in a public record.” We overrule Bar Counsel exceptions as they relate to Gansler’s extrajudicial statements about physical evidence in the Cook and Lucas cases as well as the confession in the Lucas case.

Gansler argues that the “public record” safe harbor also should protect his reference to Lucas’s history of convictions. MRPC 3.6(b) (1) informs lawyers that extrajudicial statements relating to the “criminal record of a party” are ordinarily likely to be intolerably prejudicial. Nevertheless, during the June 18, 2003 press conference announcing the arrest of Lucas, Gansler mentioned that Lucas “has a criminal record which includes residential burglaries.” To support his assertion that this statement should be protected by the “public record” safe harbor, Gansler points to Deputy State’s Attorney Winfree’s testimony, characterizing Lucas’s prior arrest and conviction record as “part of the public record.”

Based on this testimony, we hold that Gansler’s reference to Lucas’s criminal record falls under our broad definition of “information in a public record.” We reach this result because we have inferred from Deputy State’s Attorney Winfree’s testimony that she was referring to publicly accessible court records in Maryland, either case files or docket sheets, which indicate that an individual has been convicted of a crime. Maryland law does not bar an ordinary citizen from combing these court documents to learn information about someone’s criminal history. For this reason, Lucas’s history of convictions could have existed in the public domain before Gansler spoke of it. Under the circumstances of this case, the extrajudicial reference to Lucas’s convictions qualifies for the protection of the “public record” safe harbor, as we have broadly defined it for this Opinion. Because of the strong prejudicial impact of the public disclosure of criminal record information, future respondents will have the burden of establishing that such information was contained in a bona fide public court record accessible to the general public.

Additionally, lawyers who make extrajudicial statements in the future will not find shelter in the broad definition of MRPC (c) (2) that we apply here. Public policy mandates a more limited definition of “information in a public record.” We believe that, to best “protect[ ] the right to a fair trial and safeguard[ ] the right of free expression,” the phrase “information in a public record” should refer only to public government records—the records and papers on file with a government entity to which an ordinary citizen would have lawful access.

To receive the protection of the “public record” safe harbor, the lawyer must not provide information beyond quotations from or references to public government records. The definition we establish in this case prevents attorneys from side-stepping the rule by directing or encouraging individuals not bound by the MRPC to publicize information so that attorneys can speak freely about it. Furthermore, by strictly limiting what is considered a public record, this definition enables all of the components of MRPC 3.6 to filter objectionable publicity, preventing the “public record” exception from swallowing the general rule of restricting prejudicial speech.

In any event, no matter whether one defines “information in a public record” broadly to include everything in the public domain or narrowly, Gansler violated the MRPC 3.6 by making several extrajudicial statements at issue in this case. Initially, we must point out that Gansler has not challenged that his comments qualify, under MRPC 3.6(a), as statements that “a reasonable person would expect to be disseminated by means of public communication.” The only contested issues in this case concern whether Gansler knew or should have known that his statements would have a substantial likelihood of materially prejudicing an adjudicative proceeding and whether the statements are protected under the safe harbor provisions of MRPC 3.6(c). As we discuss in detail below, Gansler did violate MRPC 3.6 by commenting on Cook’s confession …and by providing his opinion as to the guilt of Cook and Lucas.

First, Gansler violated MRPC 3.6 by discussing Cook’s confession to the Stottsmeister murder. MRPC 3.6(b) (2) provides that a statement relating to the “existence or contents of any confession, admission, or statement given by a defendant” is “ordinarily likely” to have a “substantial likelihood of materially prejudicing an adjudicative proceeding.” Notwithstanding the cautionary language of the rule and prior to the filing of murder charges, Gansler publicly stated that police were able to obtain a confession from Cook. Apparently seeking shelter again under the “public record” safe harbor, Gansler points out that his reference to “incredible details” mirrored the information and even the language of the charging document. This observation fails to acknowledge that officials did not file the statement of charges against Cook until after the press conference. The “public record” safe harbor, whether construed narrowly or broadly, could not apply possibly to any statement that introduced information to the public for the first time. Gansler should have known that these statements, by themselves, would prejudice Cook in the public’s eye.

Not only did Gansler announce the existence of Cook’s confession, but he also furnished specific information of the surrounding circumstances, including that Cook provided “incredible details that only the murderer would have known.” Gansler magnified the prejudicial effect of his statements by bolstering the believability of the confession. He stated that, before Cook traveled to the crime scene and “went over in detail by detail every step of” the murder, the police had provided him with a restful night’s sleep. If we found no fault with such public disclosures, we would be allowing attorneys, in effect, to evade the operation of the exclusionary rule by taking advantage of the probative value of the confession without regard to its constitutionality or admissibility as evidence. That is, Gansler made Cook’s confession public even though its contents might never reach the jury as a result of a constitutional challenge. His actions, in this regard, run afoul of our principles of criminal justice, as Chief Justice Rehnquist illustrated:

The outcome of a criminal trial is to be decided by impartial jurors, who know as little as possible of the case, based on material admitted into evidence before them in a court proceeding. Extrajudicial comments on, or discussion of, evidence which might never be admitted at trial and ex parte statements by counsel giving their version of the facts obviously threaten to undermine this basic tenet.

Gentile, 501 U.S. at 1070, 111 S.Ct. at 2742, 115 L.Ed.2d at 920.

Accordingly, with respect to Gansler’s remarks on the Cook confession, we sustain Bar Counsel’s exception because Gansler knew or should have known that his announcement would have a substantial likelihood of causing material prejudice.

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MRPC 3.6(b) (4) specifically addresses attorney comments discussing “any opinion as to the guilt or innocence of a defendant.” Although several of Gansler’s extrajudicial statements fall under this category of restricted speech and were not covered by any safe harbor, the hearing judge determined that the evidence did not show that any “material prejudicial effect” stemmed from them. Gansler’s statements, indicating that “they” had apprehended the person who committed the crimes in the Cook and Lucas cases, came soon after the defendants had been arrested and well before the eve of trial. This, coupled with the fact that neither Lucas’s nor Cook’s attorneys claimed that Gansler’s statements caused prejudice, persuaded the hearing judge to conclude that Bar Counsel had not shown a substantial likelihood of material prejudice.

We disagree with the hearing judge’s conclusion that the evidence failed to show that Gansler knew or should have known that his statements of opinion would have a substantial likelihood of material prejudice. In considering the propriety of a statement under MRPC 3.6, we determine the likelihood that a particular statement will cause prejudice at the time the statement was made, not whether that statement, in hindsight, actually worked to the detriment of a defendant. Whether Cook or Lucas claimed at their trials to be prejudiced by Gansler’s statements, therefore, does not weigh in our analysis. Rather, we concentrate on the point in time when Gansler offered his public comments to determine the probability of prejudice.

According to the hearing judge, the point in time when Gansler made the extrajudicial statements minimized whatever prejudicial effect flowed from his remarks. As support for this conclusion, the hearing judge cited Part II of Justice Kennedy’s minority opinion in Gentile. Justice Kennedy suggested that statements made well before a defendant’s trial have less prejudicial impact than statements made closer to the empaneling of a jury. Gentile, 501 U.S. at 1044, 111 S.Ct. at 2729, 115 L.Ed.2d at 904 (Kennedy, J., dissenting). Gentile had made his controversial statements six months prior to voir dire, enough time, according to Justice Kennedy, for the content of the message to fade from the public’s memory. Id. The timing of Gentile’s statement, however, was not the only factor that Justice Kennedy considered in determining that no prejudice had occurred in that case. He also analyzed the contents of Gentile’s message, which, Justice Kennedy stated, “lack any of the more obvious bases for a finding of prejudice.” Id. at 1046, 111 S.Ct. at 2730, 115 L.Ed.2d at 905.

We agree with Gansler’s theory that the timing of an extrajudicial statement may affect its prejudicial effect, but we do not believe that the timing element in this case neutralizes the obvious prejudicial content of Gansler’s statements of opinion. Like in Gentile, the timing of Gansler’s statements came well before the beginnings of Cook’s and Lucas’s trials; however, Gansler’s proclamation that “they” had apprehended the persons who committed the crimes in the Cook and Lucas cases directly contravened the provisions of MRPC 3.6(b) (4) (opinion on guilt of innocence). The comments blatantly expressed Gansler’s opinion of the guilt of the defendants. In contrast to the lawyer in Gentile, who refused to comment on confessions and evidence from searches, see Gentile, 501 U.S. at 1046, 111 S.Ct. at 2730, 115 L.Ed.2d at 905 (Kennedy J., dissenting), Gansler supported his opinions of guilt by pointing to specific circumstances, such as confessions and physical evidence, to make his views more reliable.

Gentile differs from the case before us for yet another reason: Gansler is a prosecutor, not a defense lawyer. Prosecutors play a unique role in our system of criminal justice. We recognized this recently in Walker v. State, 373 Md. 360, 394–95, 818 A.2d 1078, 1098 (2003), where Judge Harrell for the Court stated:

Prosecutors are held to even higher standards of conduct than other attorneys due to their unique role as both advocate and minister of justice. The special duty of the prosecutor to seek justice is said to exist because the State’s Attorney has broad discretion in determining whether to initiate criminal proceedings. Brack v. Wells, 184 Md. 86, 90, 40 A.2d 319, 321 (1944). The office of prosecutor is therefore “not purely ministerial, but involves the exercise of learning and discretion,” and he or she “must exercise a sound discretion to distinguish between the guilty and the innocent.” Id. The responsibilities of the prosecutor encompass more than advocacy. The prosecutor’s duty is not merely to convict, but to seek justice. “His obligation is to protect not only the public interest but the innocent as well and to safeguard the rights guaranteed to all persons, including those who may be guilty.”

Sinclair v. State, 27 Md.App. 207, 222–23, 340 A.2d 359, 369 (1975).

In addition to their special role as ministers of justice, prosecutors have limitations not experienced by criminal defense attorneys in that defense attorneys have the benefit of their client’s presumption of innocence. In other words, a criminal defense attorney may announce an opinion that his or her client is innocent with a lesser risk of causing prejudice because the law, itself, presumes the defendant’s innocence.

On the other hand, a prosecutor’s opinion of guilt is much more likely to create prejudice, given that his or her words carry the authority of the government and are especially persuasive in the public’s eye. …As lawyers, prosecutors are so distinct that some commentators have argued that the rules against extrajudicial statements should apply only to them. … Although we do not embrace this position, it nonetheless reinforces the notion that prosecutors, in particular, should be even more cautious to avoid making potentially prejudicial extrajudicial statements. Because we hold that Gansler knew or should have known that his public opinions of Cook’s and Lucas’s guilt would have a substantial likelihood of material prejudice, we sustain Bar Counsel’s exception with respect to those statements.

B. MRPC 3.1, 3.8(a), and 8.4(d)

Bar Counsel excepted to the hearing judge’s conclusion that Gansler did not violate MRPC 3.1, 3.8, and 8.4(d). The charges under these rules arose from two events: (1) Gansler’s unsuccessful prosecution in District Court of two juveniles based on charges that they called bomb threats to a Montgomery County High School, and (2) Gansler’s statements regarding his intention to prosecute “[j]uveniles who phone in bomb threats” even if “the case is not strong enough to warrant a conviction.” Bar Counsel argues that by prosecuting the two juveniles with minimal evidence, Gansler brought a frivolous claim in violation of MRPC 3.1 and prosecuted a charge not supported by probable cause in violation of MRPC 3.8(a). Furthermore, in Bar Counsel’s view, Gansler’s violated MRPC 8.4(d) because the statements about future bomb-threat prosecutions communicated to the public that “someone acquitted of a crime was guilty nonetheless and warranted to be prosecuted….” Gansler responds that he prosecuted the juveniles because he believed that they had committed a crime beyond a reasonable doubt. He contends that the judge’s decision to acquit the juveniles represented only that she disagreed with his evaluation of the evidence, not that the prosecution lacked probable cause.

MRPC 3.1 prohibits attorneys from bringing frivolous suits, and MRPC 3.8(a) prohibits prosecutors from knowingly prosecuting a charge that is not supported by probable cause. Expressly addressing only the comments Gansler made, the hearing judge concluded that Bar Counsel had not presented clear and convincing evidence that Gansler “intended to prosecute in violation of [MRPC] 3.1 and [MRPC] 3.8(a).” Although she did not specifically address the issue in her Report and Recommendations, the hearing judge, by finding no violation under MRPC 3.1 and MRPC 3.8(a), determined implicitly that insufficient evidence supported Bar Counsel’s charge concerning the actual prosecution of the juveniles. Likewise, the hearing judge also implicitly concluded that the evidence did not support a violation of MRPC 8.4(d).

We agree with Judge Stevenson that, based on the evidence presented, Gansler did not commit a violation of MRPC 3.1, MRPC 3.8(a), or MRPC 8.4(d), when he commented on future prosecutions of juveniles who phone bomb threats. Gansler testified and responded to Request for Admissions that he never intended to prosecute any charges in bad faith. Rather, according to Gansler’s testimony, by making the comments about prosecuting bomb threats, he intended to communicate that his office must try “hard cases.” The hearing judge found this testimony credible, a determination that we readily accept.

Gansler’s actual prosecution of the youths also did not amount to a violation of MRPC 3.1, as Bar Counsel contends. Evidence before the hearing judge related to this charge came solely from a newspaper article covering the juveniles’ case. The article reported that the District Court judge acquitted the juveniles, stating, “I have no idea who did this” and “I have no evidence.” As further reported by the article, the State’s evidence of telephone calls could not link the juveniles to the bomb threat. Without more, the news article does not demonstrate by clear and convincing evidence that Gansler violated MRPC 3.1. Consequently, we overrule Bar Counsel’s exceptions to Judge Stevenson’s ruling that Gansler’s prosecution of the juveniles as well as his reported comments about future prosecutions do not violate MRPC 3.1, MRPC 3.8, or MRPC 8.4(d).

IV.

Sanction

***

Bar Counsel recommends that we issue a reprimand. On numerous occasions, Gansler spoke outside of court about matters that had a substantial likelihood of depriving several criminal defendants of fair trials. Gansler presented no evidence of mitigating circumstances. The appropriate sanction in this case is one “which demonstrates to members of this legal profession the type of conduct that will not be tolerated” and which maintains the integrity of the Bar by preventing Gansler’s transgressions “from bringing its image into disrepute.” … A reported reprimand satisfactorily communicates to Gansler and other members of the Bar that improper extrajudicial statements dangerously jeopardize the foundational principles of our system of criminal justice. Accordingly, Gansler is hereby reprimanded.